UK Constitutional Law Association

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Gavin Phillipson: Debating the Abu Qatada affair

I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days. It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the ECHR itself must seemingly be taken as a serious possibility, depending on the outcome of the next election.  The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter? Also striking was the virtual unanimity in the panel and amongst the audience that Qatada should be on a plane to Jordan or at least that he should be behind bars – but apparently without the inconvenience of having to convict him of any offence. From a human rights perspective, it is perhaps hard to say which was the more depressing low-light of the debate: Harriet Harman for Labour seemingly calling for the return of internment of foreign nationals or Chris Grayling for the Tories explicitly leaving open the possibility of complete withdrawal from the ECHR. Every speaker was sure that Qatada was a dangerous terrorist (or least “not conducive to the public good” as Harman put it); despite the fact that he has never been convicted of a terrorist offence in this country, no-one allowed themselves to be troubled by the presumption of innocence.

The legal aspects of the latest judgment in the Qatada saga, delivered by SIAC, were ably analysed by Tom Hickman on this blog last week. The point of this post is not to consider this judgment, the Strasbourg one that preceded it, or the legal incongruities they throw up – something Hickman dissected well. Rather it is simply to point out how rapidly and radically human rights arguments seem to be losing the day – and to consider what lessons we can draw from this sobering snapshot of political attitudes towards rights in the post-Blair era.

The Question Time “debate”

What then were the lines taken by the speakers? Nigel Farage for UKIP called for the British Government to “show a bit of spine” and simply defy Strasbourg. He ended by saying – to loud applause – “to hell with the European Court of Human Rights”. Predictable enough, we might say. Tessa Munt, for the Liberal Democrats at least knew that the most recent judgment blocking Qatada’s deportation was by SIAC, not Strasbourg. But she devoted most of her comments not to supporting the rule of law or arguing for the sanctity of the anti-torture norm, but to say that it was “extraordinary” that Qatada was free to “walk the streets” during daytime hours and calling for him to be arrested. She didn’t say what for;  the fact that in 10 years the prosecuting authorities have not thought it possible to charge Qatada with anything, suggesting that the evidence is simply not there, didn’t seem to trouble her. (Qatada was arrested and questioned in February 2001 about a German terrorist cell. Due to a lack of evidence he was never charged). As well as failing to defend the anti-torture norm, she made no attempt to stand up for either the Convention or the Strasbourg Court.  And this from the pro-civil liberties, pro-European Liberal Democrats.

The Justice Secretary, Chris Grayling, as Lord Chancellor has particular duties by convention and under the Constitutional Reform Act 2005 to uphold the rule of law and judicial independence, so he was careful not to criticise any individual judges. He was clear that the government and other authorities had to obey rulings of a British court – but didn’t say whether the same applied to Strasbourg judgments. In relation to the European Convention he said repeatedly that the current “human rights framework” in Europe was not working and must be changed. He clearly and explicitly stated that outright withdrawal from the Convention was one of the options he was considering – the first time I have heard a sitting Lord Chancellor float this possibility. The clear reversal of the pro-Convention attitude of the previous Justice Secretary, Ken Clarke was starkly apparent.

Harriet Harman’s remarks on behalf of Labour were in some ways the most startling and depressing, both for their authoritarian tendencies and their seeming ignorance of the legal framework.  While Grayling is a known right-winger and Euro-sceptic, Harman has a strong background in human rights – she was a legal officer for the National Council for Civil Liberties – now Liberty – and has taken the British Government to Strasbourg and won cases there concerning both contempt of court and the legal status of MI5.  One might therefore have hoped for a robust defence of human rights and the rule of law from one of Labour’s most seasoned campaigners for civil liberties. She did say – almost in parentheses – that we shouldn’t deport people to countries where they could be tortured or have torture evidence used against them in court.  But the main thrust of her remarks, like those of her Liberal Democrat colleague, was directed against the fact that Qatada was “walking around free”. But whereas Munt appeared to be calling for Qatada to be put on trial, Harman explicitly and repeatedly called for a return for internment.  “We did have a system in the past” she said, for detaining non-British citizens whom the authorities consider a threat to national security but can’t deport because of the risk of torture.  Later remarks clarified that this did not refer to detention with a view to deportation (lawful under Article 5(1)(f)) but rather to detention of those we know we cannot deport. It was also clear that it referred to those who we cannot convict in a court of law.  Seemingly, therefore she was calling for something like the re-enactment of the powers under Part IV of the Anti-Terrorism Crime and Security Act 2001 to detain foreign terror suspects indefinitely without charge.

To have a Labour Shadow Minister calling for a return of this draconian and discredited power was alarming enough. Worst still was her seeming ignorance of the legal background (Harman has served as Solicitor General and holds the honorary title of QC).  First, the introduction of detention without trial would plainly violate Article 5 of the Convention, and therefore require the UK to derogate from it (as in 2001), something in turn which requires there to be “a public emergency threatening the life of the nation.”   But Harman never acknowledged this, or suggested that such an emergency exists. Second, although she was a member of the Government at the relevant time, she seemed not to know why the Part IV ACTSA power had been withdrawn. Harman said was that it was a judgment of the Strasbourg court that  prevented detention without trial of foreign nationals. She said several times that the remedy for this was that all the European countries for whom this judgment was a problem should go “back to Strasbourg” and say “we must have the right to determine our own immigration processes,” including – seemingly – the power to detain those who cannot be deported.  What is baffling about this is that it was of course a judgment by a British court – the then House of Lords in what we like to call the “famous” Belmarsh judgment – that found the Part IV indefinite detention powers unlawful under the Convention; the House found that even assuming that there was a public emergency, detaining only non-nationals was irrational, discriminatory and disproportionate.  Yes, Strasbourg endorsed that finding five years later in A v UK (2009) but it is the Belmarsh judgment that led to the withdrawal of Part IV, and which still stands as a precedent binding on lower courts.

The third point relates to the grounds that Harman gave for detaining Abu Qatada without trial. She complained several times about the cost of keeping him under surveillance and concluded (this is a quote): “We wouldn’t feel unsafe and it would be cheaper.” Aside from the fact that these are somewhat flimsy grounds on which to introduce so grave a step as internment, Harman must surely know (mustn’t she?) that they could never justify a derogation. Finally, none of the politicians mentioned the UN Convention Against Torture, to which the UK is a signatory, Article 3 of which specifically prohibits deportation to torture.

In all of this, it was left to the non-politician guest – the CEO of Saatchi, Moray MacLennan, to, as he put it, introduce a small note of dissent by mildly querying why, if Qatada was such a notorious terrorist, he had never been charged with any criminal offence.  In contrast, all the comments from the audience were hard-line. One man said, to applause, “we’re a soft touch –everyone in Europe knows we’re a soft touch”; an Asian teenage boy said firmly that foreign nationals engaged in terrorism-related activity should be locked up. Since he mentioned nothing about a charge, trial or a conviction, this appeared to be a pro-internment comment – also applauded. Meanwhile another man said simply that there must be some way of sending Qatada back to Jordan while another bizarrely said that Qatada’s fate should be decided by a referendum.

Comment

What are we to make of the above? Am I being alarmist, or overly pessimistic? After all, both the Labour and Liberal Democrat spokeswoman did say that we shouldn’t send Qatada to Jordan, which is something.  Perhaps also, someone might say, Harman was not seriously calling for a return to internment (even though that is what she said). She just knew that Qatada and his rights are wildly unpopular and thought that anything other than sounding “tough” about him would be political suicide; besides Labour would never be held to her call for the return of internment. Perhaps even the Tories would never really pull us out of the ECHR – perhaps they just make vague threats to appease press and popular anger – about Qatada, and about prisoner’s voting rights. Even granted all these things, as a snapshot of contemporary political attitudes about rights, the Question Time debate was still deeply disturbing. Even if Harman didn’t mean what she said, the fact that she felt she had to call for detention without trial just to keep Labour on the right side of public opinion on the Qatada issue would still be deeply disturbing in showing where the centre of gravity now lies in public discussion of human rights.

Moreover, even if some of the Tories don’t really mean it when they threaten to pull out of the Convention (and I think at least some of them are in deadly earnest), their comments steadily chip away at the legitimacy of the Convention, rapidly making what was previously unthinkable – save for those on the really hard-core anti-European Right – a mainstream policy option.  Such calls also steadily build up expectations amongst the right-wing media and sections of the public that this will actually happen. The Tories have now been making angry noises about the HRA and the Convention for a long time: they won’t be able to fob off their supporters, UKIP, the Sun and the Mail for much longer with Bills of Rights Commissions and vague promises of a “British” Bill of Rights. Even when politicians say things they don’t mean to appease an angry electorate it still confirms my suspicion that in many, perhaps most cases, when it comes to the rights of unpopular minorities like terrorism suspects and asylum seekers, votes lie in restricting, not upholding rights.

Finally, for those of us who do not vote Conservative, and are desperate to see a more progressive Government after 2015, we are left gloomily watching debates like this, and Yvette Cooper outflanking the Coalition to the right by repeatedly attacking the Government for removing the power to impose internal exile on terror suspects subject to a TPIM (which replaced Control Orders). The removal if this power, found to be peculiarly destructive of controlees’ lives, was one of the few concrete ways in which TIPMs improved upon Control Orders. Political constitutionalism calls for questions of rights to be determined not in the courtroom but through democratic means. If the only sure way to get a better government is to vote Labour, but Labour is in some respects at least, profoundly illiberal and authoritarian, then many of us will hold our noses and vote Labour anyway. But in what real sense is that a democratic determination of rights issues? When all politicians on a panel agree on an illiberal line, where is the real political debate about rights?

The purpose of this post is not argue that we should give up on political protection of rights and trust the judges instead.  Regardless of whether our preferences in political philosophy lean towards Dworkin or Waldron, in a country such as ours at least the argument for rights has got to be won in the political sphere. This is so if only for the practical reason that, were our elected representatives to withdraw their support for the human rights project, the judges will have their legal rights-protecting tools – the ECHR and the HRA – taken away from them. While common law norms might stage a limited fight-back in such circumstances, ultimately it is the political domain that will decide whether the UK will continue to accept the judgments of Strasbourg, whether some prisoners get the vote, and whether we lock up terror suspects without trial because it’s cheaper and makes us feel safe. As Conor Gearty has said, we must therefore “fight the good fight” for human rights in the political realm. But it’s important to know just how uphill a struggle it will be – just how entrenched ignorance and contempt for human rights norms may be becoming – even these we like to think of as both elementary and central to our democracy.

 Gavin Phillipson is a Professor of Law at Durham University.

 Suggested citation: G. Phillipson, ‘Debating the Abu Qatada affair’ UK Const. L. Blog (24th November 2012) (available at http://ukconstitutionallaw.org).

About UKCLA

The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’.

16 comments on “Gavin Phillipson: Debating the Abu Qatada affair

  1. Jack Simson Caird
    November 24, 2012

    Fantastic post. Couldn’t agree more. My own research shows that Parliament can occasionally take ownership of some constitutional norms, but the predominant attitude of the political class is that constitutional norms and rights are technicalities rather than overriding principles. There is a fundamental lack of any sense of pride or ownership in the norms which underpin our democracy. Some of the Lords do a great job reminding the gov of these principles, but they are swimming against the tide of the majority, and the majority seem oblivious that these norms are key to the legitimacy of the political system from which they derive their power.

    • Mark Pope
      November 29, 2012

      Yes, a great post. It will also be interesting to see how the House of Commons reacts to the Lords’ amendments to the Justice and Security Bill and if the Commons consideration of the Bill’s challenge to constitutional norms of open and natural justice differs.

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  3. Alan Robertson
    November 24, 2012

    This is a particular case which very few people have any sympathy with. Quite simply most members of the general public think the outcome and process absurd. The judges in this case might have thought they were doing their job correctly but in doing so they undermined support for the human rights process with the outcome that in future real human rights issues will be undermined. The judges should have used their discretion to find a different outcome otherwise we might as well employ robots. Judges do have some leeway. Cases like this will mean that decisions like this will have to be taken by politicians rather than judges. No one votes for judges so its right that the will of parliament should make the final decision. Its also politicians fault for subscribing to an impossibly idealistic legal framework. This is a clear case of the best undermining the good. We want some human rights but not at the expense of the executive being unable to take decisions to defend the country.

  4. ObiterJ
    November 24, 2012

    There is no doubt that many things are now under deliberate attack from the politicians who, as ever, seek to maximise their own powers. Thus we see – slashing of legal aid; attacks on judicial review; wider use of “closed material procedures” / special advocates; endless digs at important things such as human rights etc. Surely, there is a clear pattern here of minimalisation of the rights of the British citizen.

    As for Question Time, the failure to get a more balanced panel is very worrying.

  5. Vance
    November 25, 2012

    Talk, talk, talk but no action whatsoever. Just kick him out. There will be no repercussions over this.

  6. Pillsbury
    November 25, 2012

    Your day is nearly over – Strasbourg and its political interference disguised as law is discredited, and a judicially weak court is in the way out. Have a good cry – the progressive agenda is derailed.

  7. Attorney at Law as a Istanbul Bar Association
    November 26, 2012

    In appearance the crisis of Europe is the deepest, namely not only on economy. I could have not guessed, so the high degree of the ignorance might be like in UK, until read that article. But unfortunately it had possible. Although the CEO of Saatchi, Moray MacLennan had been queried with a so simple question, Quatada had not been convicted any charge, anybody does not accept as important or as concerning the debate.Besides the expert guests had been told and understood SIAC of UK is the reason of question, not ECHR or EC+HR of Strasbourg. And as the last every civilized state have to obey the anti-torture rules of International Law, even you do not like Quatada at all. İt is Law and one day it might be necessary everybody.

  8. David Bentley
    November 26, 2012

    It’s surprising to find anything that Harriet Harman says receiving such close analysis; while to dismiss leaving the ECHR as ‘unthinkable’ hardly advances Gavin Philipson’s argument.

    More seriously, what should be done in such cases? (Candidates who would answer, “Put them on trial here” should not attempt this question.)

    David Bentley

  9. Gavin Phillipson
    November 27, 2012

    (1) Harriet Harman is a senior member of the Labour Party and the Shadow Sec State for CMS. Not sure why the casual sneer at her expense. I also pointed out why her long background as a campaigning civil libertarian makes her current stance particularly concerning.

    (2) If you read the piece again, you will see that I nowhere dismissed leaving the ECHR as “unthinkable”. I said that we used to believe that repeal of the HRA was unthinkable – ie that, like the devolution legislation, it had quickly become politically entrenched. Leaving the ECHR itself would however be a grave step and many believe would do great damage to the cause of human rights in Europe and around the world as well as to the UK’s reputation as a rights-protecting liberal democracy. It would take us back to the position prior to the 1950s in which we only had interstiticial liberties and those positive rights that Parliament chose to grant us (plus some Simms-style “common law rights” – a rather small and uncertain category at present). It would also place our membership of the EU in jeopardy.

    (3) As for “what we should do”, if there really is no usable evidence, after ten years, that could be used to prosecute Qatada (about which I am sceptical) and then is solid evidence that he remains a threat (is there such evidence?) then I suppose that for now we use the TPIMs legislation, which is in place for this purpose, while continuing our efforts with Jordan to ensure that he can be deported without a real risk of torture evidence being used against him. In relation to producing evidence to use in other criminal cases, we finally get around to repealing our absurd prohibition against using phone tap evidence in criminal trials. I simply don’t buy the argument that the UK, uniquely amongst democracies, cannot come up with a sensible framework to do this. What is lacking is political will to drive it through.

  10. Ageing Albion
    November 27, 2012

    Rarely do we see such a clear example of the great intolerance that is the modern political movement that (rather ironically) calls itself ‘liberal’ or ‘progressive’ (progressing from liberal to illiberal presumably …). Using ‘conservatives’ as though it were a swear word does not an argument make.

    Another good recent example is the farce over the UKIP foster carers. No less a liberal icon than Lord Lester was moved to say in today’s Times that the local authority’s decision was clearly unlawful, yet anyone can see why it happened. Rather than bother about engaging with arguments or examining policies, all they figure on doing is labelling their opponents ‘racist’ and leaving it at that.

    Still more irony is in your use of the word ‘democratic’: if a majority of the population voted against the HRA we can imagine your reaction – in other words, you can’t have democracy if it gives you the wrong answer …

    I would question whether it is appropriate for an academic to be engaging in blatant electioneering too ..

    Now to what passes as the substance of your argument. Jordan’s criminal justice system is not our problem. Those of their citizens – and any other foreign nationals – who ask for our protection should not receive it unconditionally. There should be a set of duties accompanying any rights bestowed. If our security services deem any non citizen to be a threat then they should be deported. I would draw the line at deportation to a war zone, but that’s about it. Certainly in the case of a friendly state we should not be agonising over the trial process and comparing it with our own, unless we are considering extradition of a British citizen.

    It comes back to a point of principle – rights should entail obligations. Those who claim the protection of our country owe it duties – principally, the duty to obey the criminal law. Any convicted of an imprisonable offence should lose that protection. No-one who has fought for our enemies should receive it in the first place – nor those who are adjudged by the Security services to be a threat.

  11. David Bentley
    November 29, 2012

    (1) I accept that my comment about Harriet Harman was discourteous, and perhaps ill-judged, particularly as I am in broad agreement with what she was saying. But politics is a rough old business; nor should it be an occasion for hand wringing that, when faced with the difficulties of a particular class of case, a senior Labour politician or civil libertarian steps out of some supposed party line.

    (2) “Unthinkable”: if that is how Professor Phillipson says the sentence should be read, so be it. It’s not how it appears to me, and the objection to that kind of language still stands.

    (3) What is to be done? I am sure Professor Phillipson is not accusing ministers, and successive DPPs, of acting in bad faith when they say terrorism is crime and those suspected in involvement in terrorism should when possible be prosecuted. Perhaps intercept material will some day become admissible in criminal proceedings, but the case against that should not be dismissed too readily, whatever the practice in other countries, and however loud the present ‘cry’ for it in some quarters. There would still remain other reasons why prosecution might not be possible in some cases, as well as countries whose human rights record would probably rule out a deal over the treatment of a returnee. .

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  13. Gavin Phillipson
    December 5, 2012

    Very briefly:

    (1) I was not engaging in “hand-wringing” that Harman had “stepped out of some party line”; I was expressing alarm that she was proposing a return to internment – and logically therefore, that the UK again derogate from the ECHR. In particular I was noting that her stated reasons for doing this were that it would be cheaper and would make us feel safer: grounds which couldn’t justify such a step. .

    (2) The point is simply that I didn’t “dismiss leaving the ECHR as unthinkable” – which would be to make a normative statement. I noted wryly that we (as in human rights scholars) used to think that the repeal of the HRA was unthinkable – a factual observation. Rather different things.

    (3) Fair enough. I don’t think intercept evidence will be a magic bullet here, but it would probably help. If you would like to state what in your view is the case for the current blanket ban is then we could evaluate it. I believe there is evidence that little active, ongoing consideration was given to whether some of those placed on control orders could be prosecuted instead.

    • David Bentley
      December 13, 2012

      I think we, and Christmas, are close enough to allow the dust to settle, handshakes to be in order, and events to take their course, for good or ill. I would only add this, and it’s a point that goes wider than the issue of intercept evidence .I suspect it’s almost impossible in the case of some some kinds of legislation, and intercept evidence may be one such, to turn the clock back, whatever problems the new law may bring.

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